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Thursday, November 28, 2013

The federal government’s approach to “cyberbullying”
in Bill C-13, seems more likely to empower Big Brother than to meaningfully protect
or empower little sister, or any children, for that matter. At a press conference Justice Minister Peter
MacKay claimed that the government’s priority is to “keep Canadians safe”,
“particularly our children”. If so, this
government has a funny way of showing it.
Not only does the bill fall well short of meaningfully addressing
“cyberbullying”, it makes even this limited response conditional on accepting
increased state surveillance writ large.

“Cyberbullying” has become an umbrella term
for a range of behaviours – everything from repeated insults motivated by
personal disputes between individuals to invasive and hateful attacks motivated
by sexist, homophobic, racist and other prejudices against entire groups. It is clear that a unidimensional response
such as that found in the bill is highly unlikely to meaningfully resolve the
issues at stake. As a result, many have
called for a comprehensive national strategy that identifies what kinds of
behaviours, practices and forms of harm need to be addressed. Only then can we assess the potential of
current legal and policy mechanisms, the gaps that remain and the responses needed.

We know, for example, that those who are
seen as “different” are more likely to be targeted by “bullying”. The kinds of things that make someone
“different” include race, disability, sexual orientation and sexual
identity. Getting at the root of that
kind of “cyberbullying” will require strategies that address systemic racism,
sexism and homophobia, as well as educational initiatives that teach attackers
other ways of behaving. Long-term change
requires a strategy that includes policies aimed at inclusion and respect for
diversity, human rights education, behavioural approaches, restorative
practices and, in some cases, criminal law responses.

The “cyberbullying” bill addresses only
certain kinds of behaviour and offers only one kind of response. It targets non-consensual
distribution of intimate images, hate speech based on sex, age, national origin
and mental or physical ability, and false, indecent and harassing
communications using a telecommunications system. These provisions could be
very important for women and girls. Studies
suggest that they are more likely to be targeted by online threats of sexual
violence and attacks alleging sexual promiscuity than are heterosexual men and
boys.

Criminal sanctions for these behaviours
could make a meaningful statement not only about protecting youth, but also about
our commitment to gender equality and to minimizing barriers to girls’ and
young women’s full participation in our emerging digital society. But with no proactive initiatives to change
prejudices that leave women and girls open to these kinds of attacks, we are offered
only reactive criminal sanctions that in the past have done little on their own
to reduce women and children’s vulnerability to sexual violence.

We should not dismiss outright the
potential for criminal prohibitions on non-consensual distribution of intimate
images as a community condemnation of one egregious form of “cyberbullying”. But unless incorporated into a more
comprehensive strategy, its impact is likely to be more symbolic than
real. We must directly address why
displays of women’s sexuality or recordings of sexual violence against young women
are understood as a way of shaming them.
This is particularly perplexing given the media culture that tells girls
and women they should be “sexy” in a predefined way that is really just
designed to sell them everything from diet pills to cosmetics to plastic
surgery and more. Perhaps we need to
intervene here too, to target online business models that use our personal
information to profile us and then market to us according to that profile,
perpetuating harmful myths and stereotypes about women and girls, as well as
other social groups.

Finally, whatever one thinks of the
potential of the new criminal prohibition in terms of meaningfully addressing
“cyberbullying”, it is exceptionally objectionable to see the government
advancing once again the state surveillance agenda on the backs of our children. If the bill were seriously intended to
protect our children, then at a minimum the new surveillance powers would be tied
specifically and exclusively to the “cyberbullying” provisions. Can we expect that, as it did previously with
the lawful access bill, this government will again try to bully us by accusing those
who oppose expanding state surveillance of being unconcerned about the
vulnerable in our midst?

A government that aims to provide
meaningful long-term protection for those disproportionately targeted by
“cyberbullying” would bring us a stand-alone bill that addressed gendered hate
speech, non-consensual distribution of intimate images and criminal harassment
via telecommunications systems. That government would not have repealed a human
rights based remedy for hateful online attacks on vulnerable social groups and
their members, as this government did earlier this year. That government would commit to a broader
strategy for “cyberbullying” in all of its forms. That strategy would do more than just react
to certain instances of “cyberbullying” with punitive measures. It would also include proactive approaches
for addressing the social structures and behavioural factors that contribute to
the multitude of situations encompassed by the broad term “cyberbullying”. The victims of “cyberbullying” and Canadians
as a whole deserve no less.

In the Winter 2014 term, Professor Martha Jackman will be
introducing a new upper-year bilingual seminar course – Feminist Law Reform
CML4104/Réforme fémiste du droit CML4504. This innovative skills-focussed
3-credit course, offered on Wednesdays from 6 – 9 p.m., will enable
students to develop the necessary knowledge to pursue systemic law reform at
the federal level. Drawing on the expertise of feminist lawyers and
others actively engaged in the federal law reform process, areas of discussion
and training will include: access to information and research; submissions and
appearances before parliamentary committees; lobbying; media and public
relations campaigns; public legal education; grassroots outreach and other key
tools and avenues of feminist law reform advocacy. The course also offers
students an excellent opportunity to take advantage of the rich bilingual learning
environment at U of O : Professor Jackman will switch between languages each
week and presentations by guest speakers will be in English or in French.
Students may use the language of their choice in class, and English program
students may submit their written work in English. The course syllabus
can be found on Professor Jackman’s faculty website (http://www.commonlaw.uottawa.ca/en/martha-jackman.html)
or you can reach her at: mjackman@uottawa.ca.

Howard Sapers, Canada's Correctional Investigator, has released his Annual Report with a special focus on diversity in corrections. Sapers concludes that over the past decade, the number of Aboriginal inmates has increased by 46.4%, and the number of other visible minority inmates has grown by 75%, while the Caucasion inmate population has declined by 3%. The Report calls on Corrections Canada to increase diversity among prison staff, and develop a diversity training program for prison staff and officials. Sapers' full report is available here.

Tuesday, November 26, 2013

Dr. Sheila Dunn and Dr. Rebecca Cook have published an article in the Canadian Medical Association Journal arguing that Health Canada should approve mifepristone in Canada. See an article on the subject in the Ottawa Citizen. An extract of the paper is available here. A short excerpt:

An estimated 1 in 3 Canadian women will have an abortion during her lifetime, most commonly performed during the first trimester of pregnancy. However, Canadian women lack access to a safe, effective and often preferred method of early abortion that is available in many other countries. The internationally recognized "gold standard" for medical (i.e., nonsurgical) abortion, mifepristone (followed by misoprostol), is not available in Canada.

Thursday, November 21, 2013

Today the Supreme Court of Canada granted leave to appeal in Kokopenace. This decision of the Ontario Court of Appeal held that an accused is constitutionally entitled to a representative jury pool. In Kokopenace, a First Nations accused argued successfully that First Nations people were inadequately represented in the jury pool. Kokopenace was among the cases that led to a review of jury selection processes in Ontario in 2011. In February 2013 retired Supreme Court of Canada Justice Iacobucci released a report entitled First Nations Representation on Ontario Juries, in which he raised serious concerns about the lack of First Nations representation of Ontario juries. He made several recommendations for reform.

This cases raises important issues for Indigenous accused. Stay tuned for further analysis!

Wednesday, November 20, 2013

Via FemProf listserv:

PhD Fellowship in Gender Equality
Measurement

Carleton University – commencing 2014

Call for Applications

We
welcome applications from prospective PhD candidates interested in researching
gender equality, measurement, and feminist theory. The Fellowship is not tied
to a specific program at Carleton University, but interested applicants should
have a background and proven research interest in gender equality. The Fellow
will participate in, and act as a Research Assistant for, the Gender Equality Measurement (GEM)group, a multi-disciplinary cluster at
Carleton University, comprised of faculty members from Canadian Studies, Law
and Legal Studies, Political Science, and Public Policy and Administration, who
explore the epistemological, governance, and political effects of the
‘measurement turn’ in policy, activism, and feminist thought. This one-year,
funded fellowship may be renewed for a second year, financing permitting.

We
welcome applications from candidates from a variety of backgrounds and
perspectives. To apply for the fellowship, please send a copy of your c.v.,
transcripts, a one-page statement about your research background and interests
in gender equality, and indicating the PhD program at Carleton to which you are
applying, by January 15, 2014 to:

The McGill Law Journal has posted an awesome interview with University of Ottawa law professor Jane Bailey on the eGirls Project. More information on the project available here. The full interview is available here.

Monday, November 18, 2013

* The Latest & Greatest from SSRN

Professor Jane Stoever of the University of California, Irvine School of Law, has posted a new paper on SSRN entitled "Transforming Domestic Violence Representation." Here is the abstract:

The
dominant theories used in the law to explain domestic violence, namely, the
Power and Control Wheel and the Cycle of Violence, provide only limited insight
into intimate partner abuse. Both theories focus exclusively on the abusive
partner’s wrongful actions, consistent with recent decades’ concentration on
criminalization, but fail to educate about the survivor’s needs and efforts to
end violence. The Stages of Change Model, conversely, reveals that domestic
abuse survivors seek an end to relationship violence through a five-stage
cyclical sequence and identities the survivor’s needs and actions at each
stage. This critical information should inform the representation of abuse
survivors; however, this model remains unknown in the legal profession, and
this article is the first scholarship to apply this model to lawyering. This
article evaluates the contributions and shortcomings of the dominant models. It
examines how the Stages of Change Model fills a significant void and how
insights from the Stages of Change Model can transform the representation of
abuse survivors.

Domestic violence representation presents unique challenges to lawyers as they
struggle with limited conceptions of their role, assumptions about abuse
victims and how they should respond to violence, and feelings of fear and
frustration when clients return to abusive partners. The Stages of Change Model
can concretely illuminate the general client-centered model of legal
representation and suggest multiple lawyering lessons for representing domestic
violence survivors. The Stages of Change Model is widely accepted in the field
of psychology, has been validated by numerous social science studies, and has
the potential to achieve more client-centered legal representation with greater
safety outcomes. As I explore the enormous implications this model has for
client representation in domestic violence law, I draw on my experience
teaching domestic violence clinics and the transformation my students report when
they learn and apply this model.

The Toronto Star is reporting today that Canada continues to ignore "calls to develop a comprehensive national review to end violence against aboriginal women." Several countries expressed their concern about Canada's inaction at a meeting of the UN Human Rights Council in connection with the Council's Periodic Review of the state of human rights in Canada. See the full article here.

Saturday, November 16, 2013

The Montreal Gazette has published an article on the Montreal Jewish General Hospital's refusal to comply with the Quebec Charter of Values should it become law. The Hospital characterizes Bill 60 as "patently discriminatory" and "flawed and contrary to Quebec's spirit of inclusiveness and tolerance." Read the full article here.

Wednesday, November 13, 2013

* The Latest & Greatest from SSRN

Professor Susan Boyd of UBC Faculty of Law has posted a new article, published (2013) 8:2 National Taiwan University Law Review 263, entitled "Marriage is More than Just a Piece of Paper: Feminist Critiques of Same Sex Marriage." Here is the abstract:

This article reviews feminist critiques of same sex marriage and analyzes how marriage as a ocio-legal institution relates to inequality based on factors such as sex, race and class. The article first identifies how the legalization of same sex marriage can be viewed as a positive step in the quest for equality and recognition of lesbians and gay men. It then describes the legal and statistical trends in relation to marriage in Canada, as one of the first countries to legalize same sex marriage. The heart of the article discusses the key feminist critiques of both marriage and same sex marriage, drawing on an international survey of primarily English language literature. It considers why these critiques have been understated in the debates on same sex marriage and reviews empirical studies on the views of lesbians and gay men on marriage. While acknowledging that legal marriage can offer important rights to some couples, the conclusion suggests alternatives to placing marriage at the center of the lesbian and gay movement for equality and recognition.

Tuesday, November 12, 2013

Niigaan: In Conversation is honoured and excited to partner with Red Man Laughing
for its upcoming Winter Gala and Fundraiser at the National Arts
Centre on December 10, 2013 in Ottawa, Ontario. The theme is Biiskaabiiyang
(returning to ourselves) particularly regarding how to move forward
in the collective work across the land. Please join us for music,
laughter, discussion, dancing and delicious food.

Our host for the evening is Ryan McMahon,
comedian, actor, thinker and Anishinaabe living in Winnipeg. He will
be joined by:

On October 10, 2013, the British Columbia Court of Appeal (BCCA) released its decision in Carter v Canada (Attorney General), 2013 BCCA 435. The majority (Newbury and Saunders JJ.A.) concluded that the trial judge was barred by the doctrine of stare decisis from reconsidering the constitutionality of the assisted suicide provision of the Criminal Code and sundry other provisions. In the Supreme Court’s 1993 decision in Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519, the Court narrowly rejected challenges to the assisted suicide provision under ss 7 and 15 of the Charter.[1] Chief Justice Finch, writing in dissent in Carter, concluded that despite Rodriguez, the trial judge was justified in hearing aspects of the constitutional challenge. He would have upheld the trial judge’s holding that the provision unjustifiably infringed s 7 of the Charter.

The Carter decision raises a number of fascinating and difficult issues. The case is advancing through the courts at a time when politicians and the broader society are grappling with the question of whether some form of assisted suicide ought to be permitted in Canada. CBC’s The National is currently broadcasting a four-part series on assisted suicide. In the first segment, retired Supreme Court of Canada Justice Jack Major, who formed part of the majority in Rodriguez, stated that the criminal prohibition on assisted suicide ought to be reformed.[2] The province of Quebec has proposed measures that would classify assisted suicide as part of the “continuum of care” in that province.[3] These debates and the evidence before the Court in Carter show that the issue of assisted suicide remains a polarizing one.

In this post I want to focus on two narrow legal issues raised by the BCCA’s decision in Carter, both of which relate to the Court’s treatment of s 7 of the Charter. The first concerns the definition and content of the principles of fundamental justice, and specifically, the principles of arbitrariness, overbreadth, and gross disproportionality. The majority’s decision is noteworthy in that it takes a different approach to these principles than did the Ontario Court of Appeal (ONCA) in Bedford v Canada (Attorney General), 2012 ONCA 186. Bedford, which was heard by the Supreme Court in June 2012 and deals with the constitutionality of the prostitution provisions of the Criminal Code, raises many of the same stare decisis and s 7 issues as Carter. The Court of Appeal concluded in Bedford that arbitrariness, overbreadth and gross disproportionality should be dealt with separately in its analysis. By contrast, the BCCA concluded that there was considerable “overlap” between these principles that justified a more holistic approach:

…[L]aws that come under Charter scrutiny are assessed according to a number of standards that, while couched as discrete tenets of the justice system, overlap, oscillate and even merge. This doctrinal imprecision and pliability are likely unavoidable consequences of dealing with normative and abstract ideas. Although the standard, or particular “test”, varies, the essential exercise undertaken with respect to fundamental justice under s. 7 is to evaluate broadly the rationality and normative balance struck by the law in question.[4]

Some of the confusion that emerges from these cases stems from the Supreme Court’s reluctance to clarify how these three principles of fundamental justice are related.[5] The very different approaches adopted in Carter and Bedford demonstrates that it is time for the Court to provide some guidance on this issue. In my view, the Bedford court’s approach is to be preferred over that of the majority in Carter. By collapsing the distinct concerns of arbitrariness, overbreadth and gross disproportionality into a single inquiry into “rationality and normative balance,” the Carter Court fails to recognize the importance of considering these three principles in sequence. As I have written with colleagues elsewhere, when the three principles are considered in sequence, they essentially replicate the elements of the proportionality test set out in R v Oakes, [1986] 1 SCR 103.[6] The Supreme Court has flatly rejected arguments about the “redundancy” of the elements of the Oakes test.[7] This suggests that each of the three principles of fundamental justice raised in Carter performs an important function.

The second issue relates to how the courts in Rodriguez and in Carter conceptualize the constitutional interests at stake. Both Rodriguez and Carter can be viewed as being about how to balance competing interests of a constitutional dimension.[8] In Carter, the applicant argued that her s 7 rights were violated by the criminal prohibition on assisted suicide. On the other side of the balance lay the constitutional interests in life and security of individuals who might be “vulnerable”[9] in a system that permitted assisted suicide. Both interests are weighty and deserving of protection; the more difficult question is how to develop a regulatory scheme that adequately protects both interests.[10] Viewed in this light, the “blanket prohibition”[11] on assisted suicide might prove vulnerable to challenge.

It is likely that the Supreme Court of Canada will hear the Carter appeal. With any luck the Supreme Court will begin to tackle some of the conceptual confusion that has emerged in the s 7 jurisprudence.

[2] CBC, The National, 28 October 2013; CBC Top Stories (@CBCNews), “WATCH Last Right. A four-part series on the right to die starts tonight on @CBCTheNational. Watch this powerful clip: cbc.sh/6X9gcUm” 28 October 2013.